Appeal from judgment of Court of Oyer and Terminer of Philadelphia County, June T., 1966, No. 1273, in case of Commonwealth v. Ernest Osborne.
Jerome M. Dubyn, with him M. Mark Mendel, for appellant.
James D. Crawford, Assistant District Attorney, with him Edward G. Rendell, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts.
This is a direct appeal from a second degree murder conviction and sentence thereon for which appellant is currently serving a five to fifteen year imprisonment. Appellant presents several alleged errors in the proceedings below, any one of which he contends would justify the grant of a new trial. We shall discuss and decide each of these seriatim.
First, appellant alleges that the failure of the Commonwealth to produce the bullet which inflicted the fatal wound and a second bullet which wounded witness Stephen Caldwell should render his conviction invalid as a violation of due process. It is not clear whether appellant is arguing that (1) without the bullets there was insufficient evidence to obtain a guilty verdict or (2) the suppression of the bullets was an impermissible act on the part of the district attorney. In either case we think the argument is without merit.
There was a great deal of independent testimony in the record to prove that appellant had fired a gun. Both Thomas Tillison, Jr. (brother of decedent) and Stephen Caldwell testified that they saw appellant shoot the pistol appellant had removed from the hand of the "tall man" (the latter being an individual at the scene of the crime who apparently was never identified and did not testify). Further, no evidence was ever introduced concerning any additional firearms. Thus it would appear that despite the failure to introduce the various bullets, the Commonwealth had introduced sufficient evidence to sustain a conviction.
For the second proposition, the appellant urges that this case presents the same situation as that condemned by the Third Circuit in United States ex rel. Almeida v. Baldi, 195 F. 2d 815 (3d Cir. 1952). In Almeida, the court held that the complete suppression by the district attorney of the fatal bullet when he knew it would have proven that this bullet was not fired from defendant's gun amounted to a violation of the due process clause of the fourteenth amendment. However, the instant case is clearly distinguishable on its facts. Here, appellant's attorney was aware that the district attorney had the murder bullet. He also was aware that another bullet had been fired at the scene of the crime. In fact, trial counsel, during his argument for a directed verdict, pointed out the failure to produce the bullets. All that was required for him to obtain them was a formal call for the production of such bullet or bullets at trial. Unlike the trial counsel in Almeida, appellant's trial counsel knew of the existence of the bullets and knew what to ask for. Under these circumstances it cannot be said that the district attorney deliberately suppressed the bullets simply because he failed to introduce them.
Appellant's second allegation involves a charge that the Commonwealth's two key witnesses' testimony constitutes
perjury and the use of such evidence by the prosecuting official violated appellant's constitutional rights. Before analyzing the specific variations and inconsistencies in testimony which appellant contends rise to the level of perjury, it is wise to repeat what this Court has said in relation to this type of claim. "A mere variance in testimony, or even the fact that a witness may have made contradictory statements, goes to the question of the credibility of the witness but does not, in itself, indicate perjury on the part of the witness, or that the defendant was convicted on perjured testimony, and is not, of itself, sufficient to compel a new trial. . . ." However, where the ...